A Tentative Defense of the Graham GTMO Amendment

by Julian Ku

Here is the full text of the “Graham Amendment” Bobby helpfully pointed out yesterday. The Washington Post has an analysis here. I must run off to help interview candidates interviewing for faculty positions, but let me add a few thoughts. Not surprisingly, I’m not reflexively opposed to this amendment, at least on first glance.

(1) Congress plainly has constitutional authority to regulate the scope of federal court jurisdiction over the Guantanamo detainees. As Bobby pointed out, those detainees may certain have constitutional habeas rights, but the scope of those rights are somewhat uncertain and courts will certainly give Congress broad discretion to regulate those rights.

(2) The amendment would create congressional oversight over the procedures governing the detention of the Guantanamo detainees because the Defense Department would have to submit their procedures for determinations as to the legal status of those detainees to Congress as well as any changes in the procedure.

(3) The most controversial part of the Amendment is the part removing the jurisdiction of the federal courts from “any action” based on the DoD’s new policies on detention or “any action challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant.”

This provision may indeed remove federal courts from the process of reviewing the detention of Guantanamo detainees. But it is worth remembering that it was never clear that the federal courts had much authority in that area in the first place, and that the Supreme Court has relied on its sense that Congress had approved federal court intervention.

Basically, the Amendment replaces judicial review of the fairness of detainee detention procedures with congressional review. I think this does provide a non-trivial check on the President’s authority, but I’ll have to think more about whether this check is enough to ensure good policy and fundamental fairness.

4 Responses

Julian: You’ll have to “think more about whether this check is enough to ensure good policy and fundamental fairness”? Really? There might be reasons to support the withdrawal of habeas. (I don’t think there are, but I acknowledge the counterarguments.) But the notion that withdrawal — i.e., leaving Rumsfeld’s DOD without any judicial oversight over its decisions about whom to detain and the terms of detention and interrogation — will nonetheless “ensure good policy and fundamental fairness” is, to put it mildly, to blink at reality.

11.11.2005
at 9:39 am EST Marty Lederman

Dear Julian, dear Marty,It may not be surprising that, as a foreigner, I feel offended by the amendment. Its basic message is that foreigners do not need rights, and if they have rights, they do not deserve remedies. What sense does an anti-torture amendment have if it cannot be pursued in an independent court?In addition, the amendment goes contrary to separation of powers and rule of law principles. The legislature intervenes in ongoing trials. Neither is the legislature the place to protect individual rights. The DC Circuit may not check the constitutionality of the procedure, but only its application. That is, it may be forced to apply unconstitutional procedures. This is not what I understand by constitutional government. I can only speak for myself, but my strong impression is that the Gitmo and torture affairs are ruining American human rights and democratic credentials in the world, and this amendment takes away the last resort. I hope that, on Monday, the great American tradition of meaningful rights and constitutional government will prevail in the Senate.Andreas Paulus, University of Munich

11.11.2005
at 3:15 pm EST Andreas Paulus

Not that I’m a member of the U.S. Supreme Court (who might not even have to bother deciding on Hamdan if the amendment is passed) or a detainee at Gitmo (who, for the same reason, might have to reassess his chances of ever having a real court review his status and, while at it, if life is worth living any more), but I do have an interest in knowing if you’ve had a chance of “thinking better” about the issue.

It’s always instructive to know the opinion of someone who expresses his concern about “good policy” and “fundamental fairness” when the subject is illegal detention and torture (sorry, I meant to say indefinite confinement of an individual not entitled to POW treatment rights). The rule of law (including international law – like, you know, those always annoying Geneva Conventions) might also be a parameter to consider, wouldn’t you agree? Hey, you’re the law professor …

11.14.2005
at 9:24 am EST randomopinion

The rule of law was exactly what the debate was about. However, I may add that the new compromise amendment put forward by Senators Graham, Kyl and Levin (available at http://obsidianwings.blogs.com/obsidian_wings/files/Graham_2nd_Degree_1_.pdf) alleviates most of my concerns (except for the apparent intervention in ongoing litigation and the reviewability by the Supreme Court). My basic objection however has been remedied: There is provision for civilian court review of both Review Tribunal (deciding on the holding of prisoners) and Military Tribunal (deciding on criminal convictions) decisions, including the constitutionality and lawfulness of the standards applied by those tribunals.Best, Andreas

11.15.2005
at 12:04 am EST Andreas Paulus

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